Butler and Telstra Corporation Limited
[2006] AATA 576
•30 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 576
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/267
GENERAL ADMINISTRATIVE DIVISION ) Re TERESA BUTLER Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date30 June 2006
PlaceSydney
Decision The decision under review is affirmed.
...................[sgd].............
Ms N Bell
Senior Member
COMPENSATION – Carpal Tunnel Syndrome – Claim That Condition Caused by Keying Associated With Work Duties – Existence of Condition Not In Dispute – Tribunal Not Satisfied Condition is Work Related – Decision Under Review Affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Carmelia Fernando v Comcare AAT No.12294, 14 October 1997
Barker v Telstra Corporation Ltd [2003] AATA 757
Carboni v Comcare [2005] AATA 409
Daaboul v Comcare [2002] AATA 1208
REASONS FOR DECISION
30 June 2006
Ms N Bell, Senior Member 1. Ms Butler worked with Telstra for 13 years commencing at Goondawindi, and moving to Wawrick and then to Bathurst in 1993. She was employed in an administrative type position and the duties included data entry, computer work, answering telephones, filing, general administration and stores. Ms Butler was made redundant on 10 September 2003, having received formal notice of that redundancy on 2 September 2003. Mrs Butler has not returned to work.
2. On 8 September 2003 Ms Butler lodged a claim for nerve entrapment at her left elbow and wrist. In her claim she nominated 10 February 2003 as the date of the injury. On 28 October 2003 Telstra denied liability for the condition and affirmed that decision after reconsideration on 6 February 2004.
3. Ms Butler contends that her injury was caused by the keying she was required to do in her job, and, in particular, an increased amount of keying arising out of the introduction of a new system in 1996 or 1997. Alternatively, Ms Butler suggested in the course of the hearing that a lifting incident in February 2002, when an archive box handle broke off in her hand, caused or contributed to her left upper limb condition. Telstra contends that Ms Butler’s condition is not related to her work.
issues
4. It is not in dispute that Ms Butler suffers from a condition affecting her left upper limb. The only issue is whether that condition is work related. To reach a decision on this issue a number of matters need to be addressed:
·The amount of keying Ms Butler was required to do in her job.
·Whether keying can give rise to carpel tunnel syndrome and ulnar nerve entrapment in any event and whether it did so in Ms Butler’s case.
·the timing of Ms Butler’s claim, relative to the date of onset of symptoms claimed by her and the date of her redundancy, and the persistence of her condition after she ceased work.
keying by ms butler
5. Ms Butler’s evidence was that, in an 8 hour day, she worked at a computer for 4 to 6 hours, for a minimum of 2 hours at a time. She said she forwent morning and afternoon tea breaks to allow for regular cigarette breaks throughout the day. She said that in 1996 or 1997 a new system of recording time worked by staff members was introduced. The new system allowed for technicians in the field to enter their hours worked and that information would be automatically downloaded into an electronic working report. Previously, the information was entered by an administrative officer manually from time sheets completed by staff.
6. Ms Butler said that because the new system produced errors it doubled her workload and increased the amount of data entry she had to do. She also said she “picked up” 30 to 40 extra staff from the Capital Projects Group in April 2002 after she requested more work to keep her busy.
7. The evidence of Mr Peter Chappell, a Team Leader at the depot where Ms Butler worked, and that of Mr Jim Hunter, who sometimes acted in Mr Chappell’s place, added little except to confirm that Ms Butler took regular breaks from work at the keyboard and that sometimes, after returning from leave, she was required to make amendments to timesheet data that had been entered in her absence.
8. Ms Maree Carrall, Manager of the General Administration Group, gave evidence that, with the introduction of the new system, Ms Butler’s keying ought to have decreased. She said she was under the impression that Ms Butler felt more comfortable deleting everything and unnecessarily re-keying whole timesheets and particularly those that had been dealt with by another officer in her absence. She estimated that, after taking on the Capitol Works Group, Ms Butler would have spent half the day keying. She also said that Ms Butler had the opportunity to take, and took, many breaks during the day. Ms Carrall said all data input work was transferred from Ms Butler in early July 2003.
9. I am satisfied, on the basis of the evidence, that Ms Butler spent approximately half her working day keying, with frequent breaks, that she volunteered to take on additional work in 2002 and that all data entry work was transferred from her in early July 2003.
the timing of ms butler’s claim, the onset of her symptoms and the date of her redundancy
10. Ms Butler said she first noticed symptoms in her arm in September 2002 when she felt pins and needles in her fingers and palm. In February 2003 she began to experience pain and weakness in her forearm at night or when she tried to lift an object. Ms Butler said she did not tell anyone at work about these symptoms because she thought it might have been a mini stroke. She said she did not seek medical attention because she does not like doctors and rarely goes to them. I note, however, that in cross examination, Ms Butler conceded she saw Dr Thompson, her general practitioner, on more than 5 occasions between 21 October 2002 and 15 July 2003, for other matters, following the onset of her left arm and hand symptoms but did not mention her arm symptoms to him.
11. She said as time went on, however, the pain became worse and got to the stage where she “couldn’t stand it” and she consulted Dr Thompson on 30 July 2003. She said it was affecting her work “dramatically” and she was taking 4 to 8 Panadeine Forte per day and taking 2 to 3 days off work per week. However, Ms Butler agreed that on 3 July 2003 she sent a memo to her manager, Ms Carroll asking that she be given all of the keying for electronic working reports for the whole of the greater western region (exhibit R9).
12. Ms Butler said she told Mr Peter Chappell, her manager, about her condition, in early August 2003, but did not make a claim. She said she did not think it was work related until she received the results of nerve conduction tests in late August.
13. She said she was told in early July 2003 that she was to be made redundant and chose not to take up an offer of employment elsewhere in Telstra as she did not want to relocate. She said when she was told of her redundancy the timesheet work was taken from her. She was given official notice of her redundancy on 2 September 2003.
14. On the second day of hearing, after an adjournment of some months, Ms Butler tendered, and confirmed in oral evidence, a statement concerning an incident on 2 February 2002 in which she was lifting a box. While the relevant incident report signed by Ms Butler makes no mention of an injury to Ms Butler’s arm but, rather, concerns her back, she said she reported an injury to her arm as well. She also said the officer to whom she made the report has left Telstra. She said she told Dr Thompson of the injury to her arm but told him not to bother recording it as she believed it “would come good”. In cross examination Ms Butler conceded that she had not mentioned an injury to her arm in February 2002 to any of the numerous doctors she had seen, with the exception of Dr Thompson, whose records do not disclose any mention of that injury. As to Ms Butler’s delay in raising the 2 February 2002 incident, I note that the tribunal file reflects she had requested a copy of the relevant incident report as early as August 2004.
15. Ms Butler did not have the benefit of legal representation in these proceedings. Her case depends on her own evidence and the medical evidence on which she relies. The timing of Ms Butler’s claim relative to her redundancy, the length of time that passed between the onset of her symptoms and her making anyone at work aware of those symptoms and then the late emergence, in these proceedings, of an incident in early 2002 in which Ms Butler now claims she injured her arm all affect the weight I can give to her evidence.
ms butler’s condition aftershe ceased work
16. Ms Butler had surgery, performed by Dr Fingleton in April 2004, for carpal tunnel and decompression of the ulnar nerve. She said that surgery improved her carpal tunnel condition but made her ulnar nerve condition worse. She had further surgery to her ulnar nerve, performed by Dr Kwa in March 2005 and has experienced some improvement. She said her arm is still weak and very tender, she has trouble lifting things and her elbow is painful when it is bent for long periods of time. I accept her evidence in this respect.
the relationship between ms butler’s condition and keying
17. Ms Butler prepared a document titled Research Done by Teresa Butler, which put forward a number of contentions, generally to the effect that carpal tunnel syndrome may be due to repetitive work such as typing. She cited, as general references, websites of the National Occupational Health and Safety Commission, MedicineNet Medical Reference for Patients and Medline Plus. She also provided copies of a number of articles of a similar nature, generally emanating from government occupational health and safety websites.
18. Mrs Butler referred to a number of cases where repetitive strain type injuries were found to be causally linked to employment. The cases referred to were:
·Fernando v Comcare AAT No.12294, 14 October 1997
·Barker v Telstra Corporation Ltd [2003] AATA 757
·Carboni v Comcare [2005] AATA 409
·Daaboul v Comcare [2002] AATA 1208
I am satisfied that each of these cases had outcomes that turned on facts particular to them and there was sufficient evidence presented to allow the Tribunal to reach the conclusions it did. These cases, whilst comparable in kind, offer little assistance to Ms Butler’s case.
19. Ms Butler also relied on the 3 August 2004 report of Dr Samuel Kwa, treating Hand and Orthopaedic Surgeon who described her account of worsening symptoms “due to work activities” and concluded, on this basis, that her condition was work related. Ms Butler also relied on the reports of Dr Peter Burgess, Orthopaedic Surgeon who, on 12 December 2003, based on her history of spending “a large part of the day, two or three hours at least, holding a phone in her left hand with her elbow on the desk”, said this prolonged flexion of the elbow was very likely the cause of her ulnar nerve pathology. On 1 July 2004, Dr Burgess said, two months after her surgery, she was unfit for any activity that places stress on her left arm. In his report of 27 July 2004, Dr Burgess said there is no medical evidence to support a causal connection between Ms Butler’s work and her carpal tunnel syndrome but he said there is likely to be a causal connection between her work and her ulnar nerve paresis. I note, in this respect, that a sketch made by Ms Butler of her workstation at the Telstra depot shows her telephone on her right side. I also note that Ms Butler agreed, in cross examination, that she did not mention leaning on her left elbow as a cause of her problem to any other doctor or to anyone in Telstra.
20. The reports of Dr Larry Fingleton, treating General Surgeon, offer no opinion on the causation of Ms Butler’s condition. However, I note that his report of 22 September 2003 notes Ms Butler is right handed and had at that time started to get symptoms in her right elbow similar to the left side. Given that she had ceased work by then, this tends to detract from the likelihood of her left elbow condition being work related.
21. Telstra relied on the reports of Dr Stephen Potter, Rheumatologist, dated 10 October 2003, 17 October 2003 and 1 February 2005. Dr Potter simply said Ms Butler has pathology in her arms together with regional pain disorder but they are not due to her workplace. He attached to two of his reports medical articles and commentaries indicating there is no causal relationship between clerical and keyboard duties and the onset of carpal tunnel syndrome or ulnar neuropathy of the elbow. He was firm in this view during cross examination. I note that the articles provided by Dr Potter appear in medical journals and, as such, are subject to peer review. On this basis, I prefer them to the research relied on by Ms Butler.
22. Telstra also relied on the report of Dr F J Harvey, Orthopaedic Surgeon, dated 17 August 2004,. He diagnosed entrapment of the left ulnar nerve at the elbow and noted a history suggestive of carpel tunnel syndrome. As to causation, Dr Harvey said:
“I don’t consider the entrapment of the ulnar nerve at the elbow can be related to keyboard work. I don’t consider that carpel tunnel syndrome is caused by repetitive keyboard work either, but if a person has a propensity to carpel tunnel syndrome and does a lot of keyboard work, this can aggravate the situation and make the symptoms worse. The fact that her symptoms persisted after she stopped work and the decompression wasn’t done until April 2004, is a strong indication that there is little relationship of her carpel tunnel syndrome to her employment. I believe that if the employment were an aggravating factor, one would anticipate that the symptoms would subside when the employment was ceased.”
23. I cannot be satisfied that the medical research evidence before me supports, on medical grounds, a general causal relationship between keying and nerve entrapment (including carpel tunnel syndrome and ulnar nerve entrapment). In relation to Ms Butler’s conditions, even if such a relationship were established generally, I am mindful of Dr Harvey’s evidence that the persistence of her symptoms after she left work (and some months after she stopped doing data entry work in early July 2003) is a strong indication against a causal relationship between her keying work and her conditions. The emergence of symptoms in her right elbow after she left work is similarly an indication that the same symptoms in her left elbow are not causally related to work (including leaning on that elbow whilst holding the telephone, as Dr Burgess suggested).
24. I do not consider that Ms Butler is assisted by Dr Kwa’s report which simply asserts that her symptoms are “due to work activities”. Rather, I prefer the evidence of Dr Harvey which assesses Ms Butler’s symptoms in the context of the work performed by her and the time at which she ceased that work but continued to experience symptoms.
conclusion
25. I am satisfied, on the basis of the medical evidence, that Ms Butler’s carpal tunnel syndrome was not caused by her keying and that her ulnar nerve entrapment was not caused by prolonged leaning on her elbow whilst on the telephone at work. I am confirmed in this view by the persistence of Ms Butler’s symptoms and the development of symptoms in her right arm after she ceased doing data entry work and after she left Telstra. There is no evidence to suggest that the incident she complained of in February 2002 gave rise to either of the conditions in her arm. Nor am I, for the reasons noted earlier, persuaded against these conclusions by Ms Butler’s evidence.
decision
26. I affirm the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ..........[Linda Blue]......................................
AssociateDates of Hearing 26 August 2005, 10 April 2006.
Date of Decision 30 June 2006
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Sparke Helmore
0
3
0